August 2015

If you’re going to enforce the rules, know the rules…

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It appears to me that, as of late, there has been a significant increase in the number of “frustrated” dangerous goods shipments that are being rejected by airlines and steamship lines for one hazmat violation or another. Invariably, I will receive a call from a shipper or forwarder asking for assistance expediting a shipment that is stuck somewhere in New York or Miami or Long Beach. The caller is generally at their wits’ end and resigned to the fact that the shipment will be returned post-haste to its origin at their expense.

After a quick and careful review, there is, in many cases, no error at all, or there is a rather insignificant editorial correction to be made to a Dangerous Goods Declaration or package marking. These so-called “technical violations” generally do not affect transportation safety but can result in a civil penalty being assessed against the shipper. It seems to me that returning a shipment to its origin is almost as bad as permitting it to be delivered or forwarded in transport. It also appears to me that many of these carriers and forwarders have taken on the role of hazardous materials inspector and are enforcing so-called “requirements” that may not even exist and are, therefore, creating some of these frustrated situations or creating an atmosphere of paranoia and tension between shippers and carriers.

When I led the U.S. Coast Guard’s Facilities & Container Inspection Division in the Los Angeles-Long Beach Marine Safety Office, I had a very simple philosophy that I shared with my crew: “If you’re going to enforce the rules, know the rules.” The same tenet should be applied to the industry as well.

Carriers and forwarders have an affirmative duty to carefully review dangerous goods shipments before accepting and/or reoffering them for transport in commerce. However, they should carefully apply common sense and logic before they reject a shipment out of hand or put a non-conforming shipment back into the transportation chain. The carrier and forwarder should work closely with shippers to correct any deficiencies before hazardous materials are tendered for transportation or immediately upon discovery.

For example, I recently received a call from a shipper whose shipment was being returned to the manufacturer at their expense because the shipper had failed to put a capital letter “G” following “kg” when indicating the weight of a consumer commodity shipment. Really? Couldn’t the carrier have asked for an amended Dangerous Goods Declaration? Instead, he or she created such a toxic environment that the shipper is considering giving their transportation business to another carrier.

The responsibility for hazardous materials compliance does not, and should not, rest solely with the carrier or forwarder. Rather, it is the shipper’s responsibility to ensure that the dangerous goods consignment is properly classified, described, packed, packaged, marked, labeled, placarded, stowed and segregated, and is, in all respects, ready for transportation as described in the Shipper’s Declaration to which they attest.

What are a shipper and carrier to do?
I’ve always believed that the burden of responsibility for hazardous materials compliance rests with all parties in the transportation chain. Certainly, there is a differing degree of culpability for violations of the hazardous materials regulations, but compliance is a shared responsibility.

Shippers should work closely with carriers, prior to tendering dangerous goods, to ensure that the goods are properly marked, labeled, packaged and declared. Performing a pre-transfer conference or carrier review when a new type of hazardous material is initially offered can reduce or eliminate frustrated or con-conforming shipments. Shipper’s should “bake” into their logistics process a detailed carrier review to ensure that all parties agree on the relevant hazard communication requirements as well as discuss any carrier–specific requirements or nuances that are not otherwise known or described in the applicable regulatory references.

Larger shippers should consider hosting an annual carrier conference whereby carriers, forwarders and other transportation partners discuss specific logistics requirements and dangerous goods requirements for the upcoming year. The shipper should prepare and make available sample packagings and dangerous goods declaration templates for the carriers’ review. Shippers should then get a written acknowledgment letter from each carrier so that future shipments are not subject to differences in interpretation among different transportation hubs or stations. The acknowledgment letter will act as a “trump card,” so to speak.

Likewise, carriers and forwarders are encouraged to develop an internal communication network whereby non-conforming or non-compliant shipments are stopped and an immediate correction is implemented before continuing the voyage. Carriers and shippers should agree upon the costs to implement these changes en route and identify how they will be paid for. Carriers and forwarders should very clearly communicate any carrier-specific restrictions and prohibitions so that there are no surprises later. For example, a particular steamship line may not be certificated to carry certain cargoes on board their ships. This is critical information that needs to be clearly communicated beforehand. Carriers and forwarders should also make it clear that hidden hazardous materials shipments will not be tolerated and will be reported immediately to the authorities, as required.

Most importantly, both carriers and shippers should know the rules before they enforce the rules. Both carriers and shippers should have received the requisite initial and recurrent hazardous materials training for the modes they are using to move the goods. Both parties should also research and obtain written letters of interpretation from the U.S. Dept. of Transportation (DOT) for those issues subject to interpretation. Shippers and carriers should clearly communicate their requirements and expectations prior to entering into a contract for carriage. Shippers and carriers are also encouraged to seek the advice and counsel of a neutral third party consultant, and even the DOT’s Pipeline & Hazardous Materials Safety Administration (PHMSA) for expert opinions on the regulatory requirements. They shouldn’t waste precious time and resources trying to interpret these very complex rules and requirements. Likewise, they should consider using these resources to resolve any conflicts that may arise after the shipment is tendered and the questions “Who is responsible?” and “Who should pay?” invariably get asked. The third party can act as an arbitrator of sorts to help resolve these conflicts before involving a regulatory agency, which may cite both parties for failure to comply with the regulatory requirements.

If you have any questions regarding carrier conferences, regulatory interpretations or expediting frustrated shipments, contact the author at [email protected] or call (310) 370-3600, or contact DOT’s Pipeline & Hazardous Materials Safety Administration’s Hazmat Helpline at (800) 467-4922.